Hoang v. State

551 S.E.2d 813, 250 Ga. App. 403, 2001 Fulton County D. Rep. 2291, 2001 Ga. App. LEXIS 780, 2001 WL 748072
CourtCourt of Appeals of Georgia
DecidedJuly 5, 2001
DocketA01A0132
StatusPublished
Cited by6 cases

This text of 551 S.E.2d 813 (Hoang v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoang v. State, 551 S.E.2d 813, 250 Ga. App. 403, 2001 Fulton County D. Rep. 2291, 2001 Ga. App. LEXIS 780, 2001 WL 748072 (Ga. Ct. App. 2001).

Opinion

551 S.E.2d 813 (2001)
250 Ga. App. 403

HOANG
v.
The STATE.

No. A01A0132.

Court of Appeals of Georgia.

July 5, 2001.

*814 Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, Atlanta, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

PHIPPS, Judge.

In connection with the death of 16-month-old B. D., a grand jury indicted Myhoa Thi Hoang on two counts of felony murder,[1] two counts of cruelty to children,[2] and one count *815 of contributing to the deprivation of a minor.[3] A jury found her guilty of one count of cruelty to children by unlawfully and maliciously causing B.D. excessive pain by failing to seek medical treatment after the child had sustained a serious head injury, guilty of contributing to the deprivation of a minor, and not guilty of all other counts. Hoang appeals on the grounds of insufficient evidence and an inadequate jury charge. Because the evidence was sufficient and the charge was adequate, we affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.[4] We do not weigh the evidence or determine witness credibility but only determine whether under the standard of Jackson v. Virginia[5] the evidence is sufficient to support a verdict of guilt.[6]

Viewed in this light, the evidence showed that on the evening of March 16, 1999, B.D. had a fever and his father made plans to take him to his pediatrician the next morning. At 8:30 a.m., B.D. and his father arrived at the pediatrician's office. B.D.'s temperature was 103 degrees. At the doctor's office, he was given Advil, Tylenol, and a lukewarm bath to bring down his fever. His temperature came down "a couple of degrees." A pediatric nurse practitioner's examination revealed that his ear drums were infected. B.D. was given an antibiotic injection, and he and his father left the doctor's office at about 10:15 a.m.

Fifteen minutes later they arrived at Hoang's residence. Hoang had been B.D.'s babysitter for the previous six months. At the time of the trial, she was 31 years old, married, and the mother of three sons, ages nine, four, and two.

B.D. was crying when he arrived at Hoang's residence, and his father told Hoang that he had an ear infection and a fever, that the doctor had already given him some medicine, and that he did not need any more. His father then left B.D. in Hoang's care. Hoang tried to console B.D., but he could not be comforted. He would not play or sit on the floor as he normally did, but instead wanted to lie down. Hoang fed him warm cereal; afterward, he began to cry again. Hoang put B.D. in an automatic swing, where he stared at the ceiling, and moments later, he vomited. Hoang testified that B.D. looked pale and "very, very, very sleepy." She put him down for a nap, and he slept until 1:30 p.m., when he wakened, crying and with a high fever. Hoang testified that she wanted to give him some medicine for his high temperature but decided that he needed to eat something before taking it. When she offered him food, B.D. would not eat.

Hoang testified that at about 1:40 p.m. B.D.'s body shook for two or three minutes. She put lemon juice in his mouth. Hoang, a native of Vietnam, testified that in her native country, lemon juice is given to babies to relieve high temperatures and seizures. When the seizure passed, B.D.'s temperature was 104.8 degrees. A few minutes later she noticed that B.D.'s fever had "come down" and thought the child was "okay." But he began to cry again. Around 1:45 or 1:50 p.m., B.D.'s hands and feet started turning cold.

Hoang testified that B.D.'s parents had instructed her to call them first if anything ever happened to their son. She searched for his father's telephone number, but could not locate it. At approximately 2:00 or 2:10 p.m., she attempted to call B.D.'s mother, but she was at lunch. Hoang called her husband to get the telephone number of B.D.'s father, but her husband told her that he did not have the number and advised her to continue trying to reach B.D.'s mother. She called B.D.'s mother again ten minutes later and *816 left a message with a co-worker asking that the mother return her call because her child was "very sick." Ten minutes later, when Hoang tried calling B.D.'s mother again, the same co-worker told her that he could not find her. She testified that she asked him to search for her again, stating she was "very scared" and did not know what to do. B.D.'s body was "very cold, and he had stopped crying." After a third call, the mother returned Hoang's call. It was close to 2:45 or 2:50 p.m.

Hoang told B.D.'s mother that her child had been vomiting and "shaking," that he had a high temperature, that he was then "cold," and that she or his father should come to her house immediately. B.D.'s father arrived there between 3:15 and 3:30 p.m. B.D. was unconscious; his lips were purple; his arms and legs were cold. Hoang told B.D.'s father that he needed to take B.D. to the hospital or doctor. The father drove B.D. to a children's emergency center, 15 minutes away. The attending emergency room physician found B.D. not breathing and without a heart beat; his pupils were fixed and dilated.

B.D. was resuscitated and then given a CAT scan. The attending physician testified that the scan showed that B.D. had extensive skull fractures involving both sides and the back of his skull as well as a large amount of subdural hematoma. He opined that B.D.'s skull fracture had occurred as a result of an impact similar in force to a motor vehicle accident. B.D. also had retinal hemorrhaging consistent with shaking coupled with striking. The physician testified that given the extent of the injuries, he would not have expected B.D. to live more than two to three hours after sustaining the impact.

B.D. was rushed by helicopter to another children's hospital, where a pediatric neurosurgeon operated on him at approximately 5:00 p.m. The surgeon testified that B.D. had extensive skull fractures and that his brain was bruised and swollen. He opined that B.D.'s severe head injuries were caused by "forceful blunt trauma to his head," stating that the severity of the injury was inconsistent with a household fall or a fall from a bed[7] and that the impact would have rendered the child unconscious immediately and precluded regaining consciousness.

B.D. died the next day. A county medical examiner performed an autopsy and found an eleven and one-half inch skull fracture extending from the left side, around the back, then to the right side of B.D.'s head. Branching from that fracture were seven additional skull fractures ranging in length from a quarter of an inch to five and one-half inches. The examiner testified that the fracture pattern was not typically associated with accidental injuries that occur around the house, but that these injuries were inflicted upon B.D. with some type of blunt object. He opined that the injury was not caused by B.D.'s bumping his head on a car door frame.[8]

1. Hoang contends that the evidence was insufficient to authorize a conviction for cruelty to children because there was no evidence of malice. OCGA § 16-5-70

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Cite This Page — Counsel Stack

Bluebook (online)
551 S.E.2d 813, 250 Ga. App. 403, 2001 Fulton County D. Rep. 2291, 2001 Ga. App. LEXIS 780, 2001 WL 748072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoang-v-state-gactapp-2001.